EnviroNotes

U.S. EPA Proposes 70% Reduction in Degreaser Emissions
U.S. EPA Excludes Recycled CRTs From Hazardous Waste Regulations
IDEM Issues New Guidance on Isolated Wetland Activities

By Andy Bowman, Chair, Environmental Law Group, Bingham McHale LLP

U.S. EPA is proposing additional reductions of hazardous air pollutant (HAP) emissions from halogenated solvent cleaning operations, also known as “degreasers.” The proposed new limits would apply to an estimated 3,800 degreasing machines located at 1,900 facilities in the United States considered to be major sources of HAP emissions. Major sources have the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year.

Degreasers at major sources first became regulated in 1994 when the U.S. EPA promulgated maximum achievable control technology (MACT) standards for major sources and area sources (non-major sources) using batch vapor solvent or in-line solvent cleaning machines and generally available control technology (GACT) standards for area sources using batch cold cleaning machines. The proposed new emission limits arise from a Clean Air Act requirement that U.S. EPA promulgate so-called residual risk standards when it determines the existing MACT standard does not reduce lifetime excess cancer risks to less than one-in-a-million.

The proposed limitations would require an affected facility to comply with a facility-wide solvent emission limit. U.S. EPA has proposed two options for the facility-wide emission limits. Limits are proposed for methylene chloride, perchloroethylene and trichloroethylene as well as a limit for multiple solvents. The proposed rule does not impose any new equipment monitoring, work practice or control requirements. Facilities can choose how they comply by switching to a non-HAP or lower-HAP solvent, vapor capture, solvent usage reduction, improved work practices, or some combination of these alternatives.

Comments may be submitted on or before October 2, 2006. The proposed rule can be found in 71 Federal Register 47670 (August 17, 2006). Additional information is available here.

U.S. EPA Excludes Recycled CRTs From Hazardous Waste Regulations

By Andy Bowman, Chair, Environmental Law Group, Bingham McHale LLP

On July 28, 2006 U.S. EPA published a final rule which excludes unused and used, intact cathode ray tubes (CRTs) sent for recycling from the definition of solid waste. Used, broken CRTs are also excluded from hazardous waste regulation when sent for recycling if properly packaged and labeled or stored in a building. This amendment is intended to encourage recycling of CRTs. Used CRTs, whether intact or broken, must not be speculatively accumulated to be excluded from the hazardous waste rules.

The amendment also establishes an exclusion for processed CRT glass (glass removed from CRTs) that is sent to a CRT glass manufacturer or lead smelter. Processed CRT glass recycled by other means may also be excluded if certain criteria are met. Glass that is speculatively accumulated is not excluded from the hazardous waste rules. Processed CRT glass which is to be disposed must be properly packaged and labeled and must meet additional requirements in 40 CFR Part 266, Subpart C.

The new rule clarifies that a person (other than a household) who sends a CRT directly to a landfill or incinerator is a generator of a solid waste and must determine whether the CRT exhibits any hazardous waste characteristic. If determined to be hazardous, the generator must comply with all applicable hazardous waste requirements.

The amendment does not affect the current exemption for households or conditionally exempt small quantity generators (generates less than 220 lbs of hazardous waste per month).

The final rule becomes effective on January 29, 2007. Indiana will need to amend its rules to take full advantage of the federal exclusion. More information can be found at 71 Federal Register 42928 (July 28, 2006).

IDEM Issues New Guidance on Isolated Wetland Activities

Larry Kane, Partner, Environmental Law Group, Bingham McHale LLP

Three nonrule policy documents on isolated wetland activity issues are slated by IDEM to become effective on September 6, 2006. The comment period on all three documents closed in late July 2006.

Two of the guidance documents deal with closely related issues relating to completion of compensatory mitigation. The third provides IDEM’s informal interpretation on the baseline date for assessing certain characteristics of isolated wetlands which have regulatory implications. Each of these guidance documents will be briefly discussed.

• Minimum Success Criteria for Wetland Compensatory Mitigation

Twelve minimum criteria for determining successful establishment of a mitigation wetland are identified by this guidance document (Water-010-NPD). These criteria address class and, in some cases, type of the mitigation wetland, evaluate whether the established vegetation and hydrology meet wetland delineation criteria, address nuisance and exotic vegetation, identify minimum areal coverage by native vegetative species for various wetland types, and specify minimum average densities of live plantings in forested and forested and shrub areas. Not all criteria will be applicable to all mitigation wetlands.

The guidance further prescribes that monitoring of a mitigation wetland must be done for a minimum of three years and that the success criteria must be met for at least two consecutive years for the compensatory wetland to be considered complete and released from further monitoring. It is indicated that some deviations from the stated criteria may be allowed on a case-by-case basis for individual wetland activity permits but that no deviations will be possible for general permits.

• Overall, the guidance document has the sound and feel of a rule rather than a nonrule statement of policy guidance.

Determining When Compensatory Mitigation is Complete

This guidance document (Water-009-NPD) indicates that, for purposes of IC 13-18-22-6(b), compensatory mitigation is determined to be “complete” when construction of the compensatory mitigation site is finished and the success criteria of the IDEM-approved mitigation plan have been met for a period of two successive years.

• Effective Date for Isolated Wetland Determinations

Since January 1, 2004, is the effective date of state legislation creating the isolated wetlands permitting program, IDEM has concluded in this guidance document (Water-008-NPD) that this date (January 1, 2004) should also be used for the following wetland status determinations:

1) Pursuant to IC 13-18-22-10, IDEM cannot take enforcement action against any unpermitted activity that occurred in an isolated wetland prior to January 1, 2004.

2) Pursuant to IC 13-18-22-10, compensatory mitigation required under a water quality certification issued prior to January 1, 2004 for impacts to a wetland later determined to be isolated is released from further monitoring regardless of performance.

3) The natural vegetative condition of a wetland, for the purpose of calculating the percent disturbed by removal or replacement of natural vegetation, is the vegetative condition as of January 1, 2004. Similarly, the natural hydrologic condition of a wetland is the hydrologic condition as of January 1, 2004.

The last of these described applications of the January 1, 2004 date in this guidance document may lead to some unexpected and debatable results. To illustrate, if a wetland’s vegetation and/or hydrology has been substantially modified at some unknown date in the past, such as by planting of crops in place of natural vegetation, that modified condition, if it persisted until January 1, 2004, will be considered by IDEM as the “natural vegetative condition” of the wetland for purposes of state isolated wetland regulations.

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